Karnataka High Court
Karthik A/F Doddamylarappa Kabmli, vs Smt. Guttevva on 7 January, 2014
Bench: N.Kumar, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 07th day of January 2014
Present
THE HON'BLE MR.JUSTICE N.KUMAR
and
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
Regular First Appeal No.3090/2011 (Declrn. & Prmnt. Inj.)
Between:
1. Karthik A/F Doddamylarappa Kabmli,
Aged about 6 years, Occ: Student,
R/o Ranebennur, Dist-Haveri,
Since Minor represented by minor
Guardian Smt. Gouravva W/o
Doddamylarappa Kabmli,
Aged about 53 years, Occ: Agriculturist,
R/at Ranebennur, District-Haveri.
2. Smt. Gouravva
W/o Doddamylarappa Kabmli,
Aged about 54 years,
Occ: Agriculture & Household,
R/o Ranebennur,
Dist-Haveri.
3. Smt. Jyothi,
W/o Vijaya Bhangi,
Aged about 33 years,
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Occ: Agriculture & Household,
R/o Chandapur, Tq-Ranebennur,
Dist.-Haveri.
4. Shobha
D/o Doddamylarappa Kabmli,
Aged about 30 years,
Occ: Agriculture & Household,
R/o Kurubageri, Tq-Ranebennur,
District-Haveri.
5. Rajeshwari
D/o Doddamylarappa Kabmli,
Aged about 28 years,
Occ: Agriculture & Household,
R/o Kurubageri, Tq-Ranebennur,
Dist-Haveri.
.....Appellants
(By Sri. Vijayendra Bhimakkanavar, Advocate for
Sri F. V. Patil, Advocate)
And
1. Smt. Guttevva
W/o Ramanna Budihal,
Aged about 66 years,
Occ: Agriculturist & Household,
R/o Asundi, Tq:Ranebennur,
Dist-Haveri.
2. Smt. Ratnavva,
W/o Basappa Kambli,
Aged about 62 years,
Occ: Agriculturist & Household,
R/o Kurubageri, Tq: Ranebennur,
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Dist: Haveri.
3. Smt. Vijaya
W/o Somashekhar Budihal,
Aged about 40 years,
Occ: Household,
R/o Siddeshwar Nagar,
Tq-Ranebennur,
Dist-Haveri.
4. Puttappa,
S/o Basappa Kambli,
Aged about 35 years,
Occ: Agriculture,
R/o Kurubageri,
Tq-Ranebennur,
Dist-Haveri.
5. Manjappa,
S/o Basappa Kambli,
Aged about 32 years,
Occ: Agriculture,
R/o Kurubageri,
Tq-Ranebennur,
Dist-Haveri.
6. Ashokappa,
S/o Basappa Kambli,
Aged about 75 years,
Occ: Agriculture,
R/o Kurubageri
Tq-Ranebennur,
Dist-Haveri.
7. Kuberappa
S/o Puttappa Kambli,
Since deceased by His LR's
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7(a) Smt. Sharadamma
W/o Kuberappa Kambli,
Aged about 61 years,
Occ: Household,
R/o Kurubageri,
Tq-Ranebennur,
Dist-Haveri.
7(b) Vidya
D/o Kuberappa Kambli,
Aged about 39 years,
Occ: Doctor,
R/o Kurubageri,
Tq-Ranebennur,
Dist-Haveri.
7(c) Veena
W/o Kuberappa Kambli,
Aged about 38 years,
Occ: Household,
R/o Kurubageri,
Tq-Ranebennur
Dist-Haveri.
7(d) Malatesh,
S/o Kuberappa Kambli,
Aged about 35 years,
Occ: Agriculture,
R/o Kurubageri,
Tq-Ranebennur,
Dist-Haveri.
7(e) Mahesh
S/o Kuberappa Kambli,
Aged about 34 years,
Occ: Advocate,
R/o Kurubageri,
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Tq-Ranebennur,
Dist-Haveri.
7(f) Vani
D/o Kuberappa Kambli,
Aged about 32 years,
Occ: Doctor,
R/o Kurubageri,
Tq-Ranebennur,
Dist-Haveri.
8. Renukamma
W/o Sannamailarappa Kambli,
Age: 51 yeas, Occ: Agriculture & Household work,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
9. Ravi S/o. Sannamailarappa Kambli,
Age: 34 years, Occ: Agriculture,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
10. Raghavendra S/o. Sannamailarappa Kambli,
Age: 32 years, Occ: Agriculture,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
11. Kavita D/o. Sannamailarappa Kambli,
Age: 31 years, Occ: Agriculture,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
12. Jolappa S/o. Puttappa Kambli,
Age: 56 years, Occ: Agriculture,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
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13. Gutteppa S/o. Puttappa Kambli,
Age: 54 years, Occ: Agriculture,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
14. Smt. Lalitavva W/o. Revanasiddappa Kambli,
Age: 50 years, Occ: Agriculture & Household,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
15. Shivappa S/o. Puttappa Kambli,
Age: 48 years, Occ: Agriculture,
R/o. Kurubarageri, Tq: Ranebennur,
Dist: Haveri.
.....Respondents
(By Sri Dinesh M Kulkarni, Advocate for R-2 to R6,
R-7(a) , R-7(d), R-7(e) and R-2
R-1, R-8, R-9, R-10, R-11, R-13, R-14 & R-15 served,
R-7(b), R-7(c), R-7(f)- Service Held Sufficient)
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This appeal is filed under Section 96 R/w Order
41 of the C.P.C. 1908, against the judgment and decree
dated 30.05.2011 passed in O.S.No.117/2006 on the
file of the Addl. Civil Judge, Ranebennur, dismissing the
suit filed for declaration for consequential relief of
injunction.
This appeal coming on for final hearing, this day,
N.Kumar J, delivered the following:
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R.F.A.No.3090/2011
JUDGMENT
This is the plaintiffs' first appeal against the judgment and decree passed by the trial Court, which has declined to grant the decree of declaration and injunction sought for by the plaintiffs.
2. Along with the plaint, in the schedule A, the genealogy of the family has been clearly set up, which is not in dispute between the parties. One Mailarappa, the predecessor died on 22.08.1950 and he had three sons Bharamappa, Gutteppa and Bheemappa. The third son Bheemappa had no issues. His wife is Gangamma. The first son Bharamappa had a son by name Puttappa, who in turn had seven sons and two daughters. His fourth son Doddamailarappa was given in adoption to Bheemappa. The said adoption was on 30.08.1952, which is not in dispute. The said Doddamailarappa was married to Gouravva, the second plaintiff in the suit. They had a son by name Kumar :8: and three daughters Jyothi, Shobha and Rajeshwari. The son Kumar predeceased his father on 13.11.1981 and Doddamailarappa died on 29.10.1984. After the death of Doddamailarappa, Gouravva took the first plaintiff-Kartik in adoption on 26.05.1997, who is the son of Shivappa, son of Puttappa, son of Bharamappa.
3. The case of the plaintiffs is, there was a partition between Bharamappa, Gutteppa and Doddamailarappa in the year 1955 and B-schedule properties fell to the share of Doddamailarappa and mutation order was passed in D No.3733. Similarly, C-schedule property has fallen to the share of Bheemappa, the father of Doddamailarappa, which is situated in Koonbevu village and mutation order was passed in the year 1952 in D. No.1371. Similarly E-schedule property has also fallen to the share of Bheemappa in the year 1953. However, subsequently, the defendants have got mutation entries changed and made in their favour. They have no value. :9: On the basis of the aforesaid mutation entries, they are trying to interfere with the possession of the plaintiffs over the suit schedule property and also denying the title. Therefore, the plaintiffs were constrained to file a suit for declaration that they are the absolute owners of B, C and D schedule properties and decree for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.
4. The defendants have filed detailed written statement contesting the claim. They do not dispute the genealogy. They do not dispute the adoption. Their specific case is that when Doddamailarappa died on 29.10.1984, his widow Gouravva and daughters Jyothi, Shobha and Rajeshwari, the plaintiffs No.2 to 5 gave a report to the revenue authorities stating that re-survey Nos.206, 207, 216/1, 216/2, 20/1A/1B and 8786/1 are the properties which are left by Doddamailarappa, : 10 : and therefore, their name is to be entered. Accordingly, mutation entry was made vide D. No.15382. They did not seek for any mutation entry in respect of B-schedule property. The B schedule properties were mutated in the name of Bharamappa's son Puttappa on the basis of the vardi given by them in respect of Survey No.375/1 re-survey No.310/1, 34/4, 314, 11/4, re-survey No.254 and re-survey No.255 were mutated in pursuance of the order in D. No. 3476/955. They are duly certified. Bharamappa died on 13.4.1983. From 26.01.1955 to 29.10.1984 there was no objection for the said mutation entry, standing in the name of Bharamappa. As the plaintiffs are not the legal heirs of Bharamappa, they have no right to object to the said decree. Similarly re- survey No.258/1 of Ranebennur village fell to the share of Basappa, son of Puttappa and mutation order in D No.3744. There was no objection to the said mutation entry. Similarly for survey No.91/2, Kunbevu village, the mutation entry was made in the name of Puttappa : 11 : son of Bharamappa in the year 1962-63 and it stands 'Given to the State'. The allegation that the defendants have manipulated their names in respect of the aforesaid lands is false. They have specifically contended that the present suit is instigated by Shivappa/defendant No.16. Therefore, they contend the plaintiffs have no right, title and interest over the plaint schedule properties.
5. The statement filed by defendant No.4 is reiterated by defendant No.16. However, the defendant No.16 the father of the plaintiff denies that the plaintiff has any right title or interest over the same.
6. On the aforesaid pleadings, the trial court framed the following issues:
" 1. Whether plaintiffs prove that they are the owners and in possession of the suit schedule B, C, D properties shown in the plaint schedule and the defendants have caused interference in the peaceful : 12 : possession and enjoyment of the suit properties?
2. Whether plaintiffs prove the genealogy as shown at 'A' schedule is true?
3. Whether defendant 1, 2, 15 & 16 proves that plaintiff is not the owner and possession of the suit properties?
4. Whether deft. No.1, 2, 15 & 16 proves that plaintiff are not entitled for the grant of injunction order?
5. Whether defendant 1, 2, 15 & 16 further proves that all the names of the defendants were appeared in the RTC as per ME No.3733, 1371, 3744, 2674?
6. Whether defendants prove there is no cause of action to file this suit?
7. Whether deft. 4 proves that he is in adverse possession of the suit properties?
8. Whether plaintiffs are entitled for the relief sought?
9. What order or decree?": 13 :
7. The plaintiffs in order to substantiate their claim, examined Smt. Gouravva, the plaintiff No.2 as PW-1 and one Jayappa Budihal as PW-2. They produced 32 documents, which are marked as Ex.Ps.1 to P-32. On behalf of the defendants, one Kuberappa, defendant No.8, Manjappa-defendant No.6, Cholappa-defendant No.13 and Shivappa-defendant No.16 were examined and they also produced 35 documents, which are marked as Ex.Ds-1 to D-35.
8. The trial court on appreciation of the aforesaid oral and documentary evidence on record held that the genealogy, produced at schedule A by the plaintiff, is correct. The plaintiffs have failed to establish that they are the owners and in possession of schedule B, C and D properties and the defendants are interfering in their possession. Defendant Nos.1, 2, 15 and 16 have proved that plaintiff is not the owner in possession of the suit schedule properties. They also proved that the plaintiffs : 14 : are not entitled for a decree of permanent injunction. The defendants have proved that their names are entered in the mutation records in accordance with law, and therefore, it dismissed the suit of plaintiffs.
9. Aggrieved by the said judgment and decree of the trial court, the plaintiffs have preferred this appeal.
10. Learned counsel appearing for appellants assailing the impugned judgment and decree of the trial court contends that Ex.Ps-22, 27, 30 and 31 clearly establish that the plaint schedule property fell to the share of Doddamailarappa in the partition, in the family, in the year 1955. Subsequently, the defendants by colluding with the revenue officials got mutated their names in respect of the property, which fell to the share of Doddamailarappa. However, it would not affect the title of the plaintiffs. This aspect has not been properly appreciated by the trial court, and therefore, the : 15 : judgment and decree of the trial court is liable to be set aside and suit is to be decreed as prayed for.
11. Per contra, learned counsel appearing for the respondents contends that the second plaintiff in her evidence has categorically admitted that Ex.D-1 was submitted by her, after the death of her husband, to the revenue authorities to mutate their names in respect of the property held by her husband. Accordingly, mutation entries have been made. The said properties are not included in the suit. There is no mutation entry in respect of the suit schedule property either in the name of plaintiffs or in the name of Doddamailarappa. Therefore, the trial court rightly held that the plaintiffs have not established their title to the property nor possession of the schedule property. Therefore, he submits that no case for interference is made out. : 16 :
12. In the light of the aforesaid facts and rival contentions the point that arise for our consideration in this appeal is as under:
"Whether the plaintiffs have established the title to the plaint schedule property as per Ex.Ps-22, 27, 30 and 31 and the trial court was justified in rejecting their claim?"
13. The relationship between the parties is not in dispute. The fact that somewhere in 1955, a partition was affected between Bharamappa, Gutteppa and Dodamailarappa-the adopted son of Bheemappa is not in dispute. No doubt, in Ex.Ps-22, 27, 30 and 31 it is stated that in the earlier partition, the schedule property has fallen to the share of Doddamailarappa but unfortunately, no mutation entries were made correspondingly in the Records of Rights immediately or thereafter, or at any point of time. On the contrary in respect of schedule property it is the defendants name which has been mutated. The admitted evidence on : 17 : record shows the defendants are cultivating the said land. They have mortgaged the land to the society and banks and raised funds and discharged the said loan. They have also purchased a Tractor by offering the said land as security till the date of suit, i.e., in the year 2006. Neither Doddamailarappa during his lifetime nor his son Kumar, nor his wife Gouravva ever objected to this mutation entry or enjoyment of the property by the defendants.
14. As against this as undisputed evidence on record, we have the evidence of second plaintiff, the widow of Doddamailarappa. It is her specific case that Doddamailarappa during his lifetime gave all his properties to his son Kumar and did not retain any property. Kumar's name was mutated in the revenue records in respect of the properties, which are mentioned in Ex.D-1. Unfortunately, Kumar predeceased his father. He died on 13.04.1981. : 18 : Thereafter, the properties were again mutated in the name of Doddamailrappa. After his death, Gouravva- widow gave Ex.D-1 to mutate her name as well as her daughters' name in respect of the property which stood in the name of Doddamailarappa. Accordingly, the mutation entries were made. After the death of Doddamailarappa on 29.10.1984, nearly 13 years thereafter the said Gouravva adopted plaintiff on 26.05.1997, who is none other than the son of Shivappa-defendant No.16. Even after the so called adoption, the first plaintiff did not raise his little finger for nearly 9 years. It is on 17.08.2006 the present suit is filed along with adopted son, mother and sisters seeking declaration that the schedule property exclusively belongs to them and for a decree of injunction. Evidence on record do not disclose that after the mutation order as per the Exs.P-22, P-27, P-30 and P-31 till the date of the suit, whether the said properties were entered in the name of : 19 : Doddamailarappa or his son Kumar or his wife Gouravva or his daughters. Even after the death of Doddamailarappa and Kumar no mutation entries have been made in the name of first plaintiff. Roughly for more than 50 years, the mutation entry in respect of schedule property stands in the name of defendants. They have been exercising their rights and ownership over the property. They are cultivating the land. They have borrowed money on the security of land and they have developed the land and nothing is on record to show Doddamailarappa during his lifetime or his son Kumar or after his death his widow and daughters and after adoption the first plaintiff ever cultivated the schedule land. Under these circumstances, the trial Court on appreciation of both oral and documentary evidence on record held the plaintiffs have failed to establish that the schedule property exclusively belongs to them. The said finding is based on legal evidence and cannot be found fault with. In the circumstances of the : 20 : case, we do not see any merit in the case. Accordingly, the appeal is dismissed.
Parties to bear their own costs.
SD/-
JUDGE SD/-
JUDGE JTR/Naa